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Judgment
Swamikkannu, J.—This is a Criminal revision case filed by P.W. 1 Bhagyam alias Bhagyathammal in C.C. No. 328 of 1981 on the file of
the Court of the learned Judicial II Class Magistrate, Vedasendur against the order of acquittal made by the said Court under S. 255(1) of the
Criminal Procedure Code finding that Al to A5 are not guilty under Ss. 147, 447 and 341 of the Indian Penal Code.
The case of the complainant-State represented by the Sub-Inspector of Police, Erode Police Station is that on 25-5-1981 at about 12 noon at
Varadharajapuram the accused 1 to 5 respondents 1 to 5 herein, namely A1 Pandian, A2 Ellappan, A3 Perumal, A4 Chinnaraman and A5
Ramanujam gathered as an unlawful assembly with an intention to create disturbance in the land belonging to the revision petitioner herein,
trespassed into the said land, obstructed the ploughing of the land and thereby committed offences under Ss. 147, 447 and 341 of the Indian Penal
Code. A charge-sheet was filed containing the above allegation by the Sub-Inspector of Police, Erode Police-Station, against respondents 1 to 5
herein before the Lower Court.
On behalf of the Prosecution, P.W. 1 Bhagyam alias Bhagyathammal, the revision petitioner herein, P.W. 2 Thirumalaiswamy, P.W. 3 Rangaraj,
P.W. 4 Pandian and P.W. 5 Subramani, constable attached to the Erode Police Station were examined. Ex. P1 complaint given by the revision-
petitioner herein on 26th May, 1981, Ex. P2 copy of the Judgment in A.A.O. No. 146 of 1981 and C.R.P. No. 1042 of 1981, Ex. P3 copy of
the judgment dated 15th June, 1981, in L.P.A No. 55 of 1981 of High Court, Madras, and Ex/P4 Petition and Order in I.A. No. 469 of 1981 of
the Subordinate Court, Dindigul were filed on behalf of the prosecution. No witness was examined on behalf of the accused. No document had
been filed as an exhibit on behalf of the accused.
P.W. 1 Bhagyam alias Bhagyathammal has stated in her evidence that she is owning land at Varadharajapuram, which was bequeathed on her
by her father by means of a Will, that she is ploughing the said land and cultivating in it. The accused are giving her trouble very often. She obtained
an order of injunction against them from the court at Dindigul. She also obtained an order for Police Bandobust. On 25th May, 1981 she had been
ploughing the said land by engaging a tractor on hire with Police Bandobust. At that time, her husband, brother-in-law Rangaraj were present at
that place, along with the Sub-Inspector of Police and four constables, who came there for bandobust. At about 12 noon A1 to A5 trespassed
into the land and obstructed the ploughing by the tractor. The accused also shouted that the complainant and others should go away from the land
if they wanted to maintain respect. Through her husband, P.W. 1 had reduced a complaint in writing and handed it over to the Sub-Inspector. Ex.
P2 is the order of the High Court dismissing the Appeal that had been preferred by A1 in the High Court against the order obtained by P.W. I. Ex.
P3 is the copy of the Letter Patent Appeal that bad been preferred. Ex. P4 is the petition filed by P.W. 1 at Dindigul Sub-Court praying far Police
bandobust. P.W. 2 Thirumalaiswamy has stated in his evidence that he is the husband of P.W. 1 and reiterated the evidence of P.W. 1 in his
testimony.
P.W. 3 Rangaraj has stated in his evidence that he belongs to Dindigul, that on 25th May, 1981 he came to the house of P.W. 1 and P.W. 2 as
a guest, that on that day in the land, which is on the eastern side of the road, ploughing was carried on in the land belonging to P.W. 1 with a
tractor, that at that time the Sub-Inspector of Police was sitting on a cot on the western side of the road, that at about 12 noon all the five accused
came there and obstructed the ploughing by tractor and also shouted. P.W. 3 also stated in his evidence that P.W. 1 gave a complaint to the Sub-
Inspector, which was received by him and that at that time the accused were taken to the Police-station by the Police.
P.W. 4 Pandian has stated in his evidence that he belongs to Kodukkanpatti and that he owns a tractor. On 25th May, 1982 he had gone to
Varadharajapuram to plough the land of P.W. 1 with his tractor. At about noon that day all the five accused persons came there and obstructed
saying that ploughing should not be done and if he continued to plough, there would be trouble. P.W. 1 and P.W. 2 gave a complaint to the Sub-
Inspector. The Sub-Inspector of Police, according to P.W. 4, took the accused to the Police Station.
P.W. 5 Subramani, constable attached to Erode Police-Station has stated in his evidence that on 25.5.1981 he had accompanied the Sub-
Inspector for bandobust to Varadharajapuram, that at that time P.W. 1 was ploughing her land, that at about 12 noon all the five accused persons
came in a crowd and obstructed the ploughing of the land. When P.W. 1 gave a complaint to the Sub-Inspector of Police, the Sub-Inspector
arrested the accused and took them to the Police-Station. P.W. 5 assisted the Sub-Inspector, when he so took the accused to the Police Station.
Though the lower court had issued several summons and granted several adjournments to the Sub-Inspector who had registered the case and
also investigated it, yet he did not appear before the lower court. Even after receiving the notice sent by registered post, the Sub-Inspector did not
appear before the lover court, though it was intimated to the said Sub-Inspector by the said letter by the Lower Court that if he did not appear
before the court, the prosecution side would be closed. For twelve adjournments the lower court had sent summons. Even after receipt of the
summons by registered post, the Sub-Inspector did not appear before the lower court in this case.
Thereafter, the lower court questioned the accused under S. 313 of the Code of Criminal Procedure relating to the incriminating circumstances
available in the evidence let in on behalf of the prosecution. The accused dewed the offence. No witness was examined on behalf of the accused.
After completing both sides and discussing the evidence available on record, both oral and documentary, the lower court came to the conclusion
that there were vital contradictions available in the evidence let in through the prosecution witnesses and further held that the non-examination of the
Sub-Inspector in the case is fatal to the prosecution case. Therefore, the lower court had held that the prosecution had failed to prove its case
against the accused. Further, the lower court observed that there had been doubt arising at every stage and the benefit of the same had to be given
to the accused. By observing so, the lower court had held that Alto A5 are not guilty under Ss. 147, 447 and 341 of the Indian Penal Code and
acquitted them under S. 255(1) of the Code of Criminal Procedure.
Aggrieved by the above decision of the Trial Court, P.W. l Bhagyam alias Bhagyathammal has come forward with this Criminal Revision Case.
Mr. M.S Krishnan for M/s R. Nandakumar and S. Gopalarathinam, Learned Counsel for the petitioner herein, inter alia, contends that the failure
on the part of the Sub-Inspector, who had investigated the case and filed charge-sheet against the accused, had resulted in the acquittal of the
accused-respondents 1 to 5 herein and as such this is a fit case to be remanded for retrial in the interests of justice.
The point for consideration is whether there is any infirmity in the judgment under revision?
It is relevant to note that Mr. T. Thangaraj, Sub-Inspector of Police, Erode Police Station is the 6th witness in the charge-sheet that he had
undergone the enquiry during investigation in this case and filed the charge sheet against the accused respondents 1 to 5 herein before the lower
court. It is seen from the diary of the lower court that on 11.5.1982, 20.5.1982, 1.6.1982, 15.6.1982, 24.6.1982, 8.7.1982, 22.7.1982,
5.8.1982, 24.8.1982, 7.9.1982, 21.9.1982, 5.10.1982 and 19.10.1982 summons were sent to T. Thangaraj, Sub-Inspector of Police, Erode-
Police Station for his appearance before the court. Finally, on 23.10.1982 the Lower Court had noted in the Diary of the case that though from
20.5.1982 twelve summons had been issued to the Sub Inspector by sending the summons through registered post and acknowledgement due, he
had not appeared before the court to give evidence. So it was not desirable further to adjourn the case for the appearance and examination of the
Sub-Inspector for recording his evidence. According to the lower court, since no useful purpose could not served by further adjourning the case, it
had no other alternative than to dose the side of the prosecution and adjourn the case to 2.11.1982 for recording the statement of the accused
under S. 313 of the Code of Criminal Procedure.
The Lower court has observed in paragraph 7 of its judgment under revision as follows:
The State is the six respondent in this Criminal Revision Case. On behalf of the State Mrs. Padmini Jesudurai, Public Prosecutor submits that if
this Court is so inclined, this case may be remanded for re-trial by directing the Lower court for issuing a warrant against the witness, namely the
then Sub Inspector of police, Erode Police-Station, under the provision of S. 87 of the Code of Criminal Procedure. Form No 9 in the Code of
Criminal Procedure is available for issuing a warrant to bring a witness. S. 87 of the Code of Criminal Procedure reads as follows:
Section 87:
Issue of warrant in lieu of, or in addition to, summons:
A court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its
reasons in writing, a warrant for his arrest...(a) if either before the issue of such summons, or after the issue of the same, but before the time fixed
for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear
and the summons is proved to have been duly served in time to admit of his appearing in accordance herewith and no reasonable excuse is offered
for such failure.
In the instant case before us, a careful persual of the Judgment under revision shows that mainly on the basis of the non-appearance of the Sub-
Inspector of Police, the Lower Court bad come to a conclusion that the prosecution had not proved its case against the respondents herein. In the
interests of justice, this Court is of the view that, under the circumstances, it is a fit and proper case for being remanded to the lower court for
retrial, after getting the presence of the then Sub-Inspector of Police, Erode Police station in accordance with law, and examine him on behalf of
the prosecution. When the Sub Inspector has failed to attend in spite of several summons issued in this case, according to the Learned Counsel for
the petitioner, it has indirectly helped the accused in getting an order of acquittal. This contention raised on behalf of the revision petitioner cannot
be brushed aside as wholly unsustainable. It is realty strange as to how a police officer, who had investigated the case, can avoid entering into the
box, especially when he has filed the charge sheet in which he has mentioned that he is the sixth witness to be examined in the case. The question
arises whether it is not, apart from a gross dereliction of duty, also amounting to contempt of court by a Police Officer, who had not even had the
courtesy to appear and submit to the court a reason, if any, for his nonappearance or disclose the reason which prevented him from giving
evidence in favour of the prosecution in this case. It is common knowledge that even Police Officers, who had investigated cases, after their
retirement had been summoned and given evidence as witnesses in cases which they had investigated. this Court is certainly of the view that such
kind of an attitude taken by an Investigating Officer in not appearing in a case as a witness and avoiding appearance before the court in which he
had filed the charge-sheet in a case which he had investigated is certainly a matter which has to be taken serious note of by the concerned higher
authorities.
In as much as this Court is of the view that this is a fit case to be remanded for retrial to the lower court, this Court is inclined to point out the
scope and applicability of the provision of S. 87 of the Code of Criminal Procedure. The present S. 87 corresponds to 5.90 of the old Code.
Witnesses brought up under a warrant of arrest should not be treated as criminals, but should be dealt with simply as persons arrested on civil
process. This section only empowers a Magistrate to issue a warrant for the apprehension of a witness, when be has reason to believe that the
witness will not attend to give evidence; without being compelled to do so a Magistrate is not bound to enforce the attendance of a witness by
warrant, except upon proof of due service of summons. He must have satisfied ''hat summons has been or will be disobeyed or that the witness will
not give evidence voluntarily before the issue of warrant of arrest. A Magistrate should record his reasons specifically in writing before the issue of
warrant and should not be satisfied with signing his name to warrants in the schedule form. A warrant of arrest cannot be issued in cases in which
summons should ordinarily issue, unless the Magistrate, in the exercise of his judicial discretion is satisfied that the summons has been duly served in
time and that no reasonable excuse existed for failing to obey the summons.
Under the circumstances, this Court allows this Criminal Revision Case by setting aside the order made by the Lower Court acquitting
respondents 1 to 5 herein and remands the case to the lower Court for retrial with directions to dispose of the same in the light of the observations
made above and in-accordance with law, after giving opportunity to both sides to adduce further evidence, if any. this Court is not discussing the
evidence, available on record and expressing any view. The lower court is directed to dispose of the case within one month from the date of
receipt of the records from this Court and submit a report to this Court.